Can the National Assembly Make Laws That Contradict the Constitution?

The question of whether a nation’s legislature can enact laws that contradict its fundamental law – the Constitution – is central to the very essence of constitutional democracy. In Nigeria, a country with a written constitution and a commitment to democratic governance, this question is not merely academic; it underpins the stability of its legal system and the protection of its citizens’ rights. This comprehensive blog post will delve into the intricate relationship between the National Assembly’s legislative powers and the supremacy of the Nigerian Constitution, exploring the legal frameworks, historical precedents, and practical implications of this crucial constitutional principle.

Introduction: The Bedrock of Constitutionalism

At the heart of any constitutional democracy lies the principle of constitutional supremacy. This doctrine posits that the Constitution is the supreme law of the land, and all other laws, actions, and authorities derive their legitimacy and validity from it. In Nigeria, this principle is unequivocally enshrined in Section 1(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which declares: “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

This declaration is not a mere symbolic statement; it is the cornerstone upon which the entire Nigerian legal and political edifice rests. It signifies that no person, no institution, and certainly no arm of government, including the legislative branch, is above the Constitution. The National Assembly, as the primary law-making body, operates within the confines and under the authority of this supreme law.

The implication of this supremacy is profound: if any law enacted by the National Assembly (or indeed any other legislative body in Nigeria) is found to be inconsistent with any provision of the Constitution, that law shall, to the extent of its inconsistency, be void. This principle is explicitly stated in Section 1(3) of the 1999 Constitution: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”

This blog post will explore, in extensive detail, the mechanisms and principles that prevent the National Assembly from making laws that contradict the Constitution, the consequences of such attempts, and the crucial role of the judiciary in upholding constitutional supremacy.

The Legislative Powers of the National Assembly: Scope and Limitations

The National Assembly of Nigeria, comprising the Senate and the House of Representatives, is vested with the legislative powers of the Federal Republic of Nigeria. Section 4(2) of the 1999 Constitution empowers the National Assembly to “make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.” It also has powers to legislate on matters in the Concurrent Legislative List (along with State Houses of Assembly) and any other matter for which it is empowered by the Constitution.

However, these vast powers are not absolute. They are circumscribed by several constitutional limitations, ensuring that the legislative arm operates within its constitutional boundaries. These limitations include:

1. Constitutional Supremacy: The Overarching Constraint

As already established, the most fundamental limitation on the National Assembly’s legislative power is the supremacy of the Constitution itself. Any law it enacts must conform to the spirit and letter of the Constitution. This means that the National Assembly cannot pass a law that: * Violates Fundamental Human Rights: Chapter IV of the Constitution guarantees a range of fundamental human rights, such as the right to life, dignity of the human person, personal liberty, fair hearing, freedom of thought, conscience and religion, freedom of expression and the press, peaceful assembly and association, and freedom of movement.

Any law that seeks to abridge or extinguish these rights, except where explicitly provided for by the Constitution (e.g., in times of war or public emergency as legally defined), would be unconstitutional. * Alters the Structure of Government or the Federation Illegally: The Constitution establishes a federal system of government with a clear separation of powers among the executive, legislative, and judicial branches. It also delineates powers between the federal and state governments.

The National Assembly cannot unilaterally pass a law that fundamentally alters these foundational structures without following the strict amendment procedures of the Constitution. * Ousts the Jurisdiction of Courts: Section 4(8) of the Constitution expressly states that “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court or a judicial tribunal established by law.”

This is a critical safeguard against legislative overreach and ensures judicial review. * Has Retrospective Effect in Criminal Matters: Section 4(9) prohibits the National Assembly or a State House of Assembly from making any law that has retrospective effects in relation to any criminal offense whatsoever. This protects citizens from being punished for acts that were not illegal at the time they were committed. * Exceeds its Legislative Competence: The Constitution meticulously divides legislative powers into Exclusive, Concurrent, and Residual Lists.

The National Assembly can only legislate on matters on the Exclusive Legislative List and, to a defined extent, on the Concurrent Legislative List. It cannot legislate on matters reserved for the states (Residual List), except under specific constitutional circumstances (e.g., during a state of emergency in a state where the House of Assembly cannot function).

2. Separation of Powers and Checks and Balances

The Nigerian Constitution, like many democratic constitutions, embraces the doctrine of separation of powers, dividing governmental functions into three distinct branches: the Legislature (National Assembly), the Executive (President and his cabinet), and the Judiciary (Courts). While each arm has its distinct functions, the system is designed with “checks and balances” to prevent any single arm from becoming too powerful or autocratic.

In this context, the judiciary acts as a crucial check on the legislature. It has the power of judicial review, meaning it can examine laws passed by the National Assembly to determine their constitutionality. This is not an act of judicial supremacy over the legislature, but rather an affirmation of the Constitution’s supremacy.

The executive arm also plays a role. The President’s assent is generally required for a bill passed by the National Assembly to become law. While the National Assembly can override a presidential veto with a two-thirds majority in both chambers, this process itself serves as a check and encourages further deliberation.

3. Procedural Requirements for Law-Making

Beyond the substantive content of laws, the Constitution also prescribes specific procedures for law-making. Section 58 of the 1999 Constitution outlines the process for passing bills, requiring passage by both the Senate and the House of Representatives, and generally, presidential assent. Failure to adhere to these procedural requirements can render a law null and void, even if its content might otherwise be constitutional. For instance, if a bill is not properly passed by both chambers or does not receive presidential assent (or an override is not properly executed), it cannot become law.

4. Federalism and Legislative Lists

Nigeria’s federal structure further limits the National Assembly’s legislative reach. The Second Schedule to the 1999 Constitution outlines the Exclusive Legislative List (matters on which only the National Assembly can legislate) and the Concurrent Legislative List (matters on which both the National Assembly and State Houses of Assembly can legislate). Matters not on either list are considered residual and fall within the legislative competence of the states.

A crucial aspect of this federal arrangement is the “covering the field” doctrine, enshrined in Section 4(5) of the Constitution: “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall to the extent of the inconsistency be void.” This provision addresses potential conflicts where both the federal and state legislatures have competence (i.e., on the Concurrent List) and clarifies that federal law takes precedence. However, this does not give the National Assembly free rein to legislate on matters outside its competence, as such legislation would be unconstitutional ab initio.

The Role of the Judiciary: Guardian of the Constitution

The judiciary is the ultimate interpreter of the Constitution and the primary enforcer of its supremacy. When a law enacted by the National Assembly is challenged as being unconstitutional, it is the courts that have the power to adjudicate on its validity. This power, known as judicial review, is a fundamental aspect of Nigeria’s constitutional democracy.

Nigerian courts, particularly the Supreme Court, have consistently affirmed their role as guardians of the Constitution. Several landmark cases illustrate this principle:

• Attorney-General of Lagos State v. Attorney-General of the Federation (2004): This case famously dealt with the power of the federal government to control certain aspects of local government administration, which is largely a residual matter for states. The Supreme Court affirmed the limits of federal legislative power and struck down federal laws that encroached on state legislative autonomy.
• Dokubo-Asari v. Federal Republic of Nigeria (2007): While not directly about legislative contradiction, this case reinforced the principle that executive actions, like legislative ones, must conform to the Constitution, particularly regarding fundamental human rights.
• INEC v. Musa (2003): The Supreme Court invalidated certain provisions of the Electoral Act 2002 that sought to regulate the registration and administration of political parties in a manner inconsistent with the constitutional provisions on fundamental rights of association.
• National Assembly v. President (2003): This case highlighted the constitutional requirements for passing bills, specifically regarding presidential assent and the override mechanism. The Supreme Court emphasized that procedural irregularities could invalidate a law.
• Lagos State Government v. Abdulkareem (2022): The Supreme Court reiterated that the Constitution is the “fons et origo of all laws, the exercise of all powers and the source from which all laws, institutions and persons derive their authority.”

Through these and many other judgments, the Nigerian judiciary has consistently demonstrated its willingness to strike down laws that contradict the Constitution, thereby reinforcing the principle of constitutional supremacy. The process typically involves:

1. Challenge in Court: An aggrieved party (an individual, a group, a state government, or even the Attorney-General) initiates a suit in a competent court (usually the Federal High Court, State High Court, or the Supreme Court for original jurisdiction matters) seeking a declaration that a particular law or a provision thereof is unconstitutional.
2. Judicial Interpretation: The court interprets the relevant provisions of the Constitution and the challenged law to determine if there is an inconsistency. This involves applying established canons of constitutional interpretation, which often lean towards a broad and liberal interpretation to uphold the spirit of the Constitution and protect fundamental rights.
3. Declaration of Nullity: If the court finds an inconsistency, it declares the inconsistent part of the law (or the entire law, if the inconsistency pervades it) to be null and void to the extent of its inconsistency. This does not mean the court “repeals” the law; rather, it declares that the law never had, and cannot have, legal force because it contravenes the supreme law.

The Doctrine of Ultra Vires in Constitutional Law

The concept of “ultra vires” (meaning “beyond the powers”) is highly relevant here. While often discussed in company law to denote acts beyond a company’s memorandum of association, it applies equally, if not more forcefully, in public law. When the National Assembly makes a law that contradicts the Constitution, it acts ultra vires its constitutional powers. Such a law is not merely voidable but is void ab initio – it is a nullity from the moment it was purportedly enacted. It has no legal effect whatsoever.

This doctrine is crucial because it underlines that the National Assembly’s legislative authority is delegated by the Constitution, and any attempt to exceed that delegated authority is legally invalid. The Constitution sets the bounds, and the legislature cannot legislate beyond those bounds.

The Amendment Process: The Legitimate Path to Change

It is important to distinguish between contradicting the Constitution and amending it. The National Assembly can change the Constitution, but only by following the specific and often rigorous amendment procedures laid down within the Constitution itself. This process, outlined in Section 9 of the 1999 Constitution, typically requires:

1. Proposal: An alteration bill originates in the National Assembly.
2. Super-majority Vote in National Assembly: The bill must be passed by a two-thirds majority of all members of both the Senate and the House of Representatives.
3. Ratification by State Houses of Assembly: For many key provisions, especially those affecting the federal structure, the alteration must also be approved by a resolution of the Houses of Assembly of not less than two-thirds of all the States of the Federation.
4. Presidential Assent (Debatable, but generally not required for constitutional amendments according to some interpretations of Section 9): While a point of contention in legal circles, the prevailing view, particularly after recent amendments, is that presidential assent is not required for a constitutional amendment to become effective once it has passed the National Assembly and been ratified by the requisite number of State Houses of Assembly, as Section 9 is seen as a self-contained process for constitutional alteration, distinct from ordinary law-making.

This deliberate and demanding amendment process underscores the fundamental nature of the Constitution. It is designed to ensure that the Constitution is not easily tampered with by a simple majority or passing political whims. If the National Assembly wishes to enact a law that would otherwise contradict an existing constitutional provision, its legitimate path is not to simply pass such a contradictory law, but to first initiate and successfully conclude the constitutional amendment process. Only after the Constitution itself has been changed can a new law consistent with the new constitutional provision be validly enacted.

Blind Spots and Potential Challenges to Constitutional Supremacy

While the legal framework in Nigeria clearly establishes constitutional supremacy, practical challenges and “blind spots” can arise:

1. Lack of Awareness and Constitutional Literacy

Despite the clear constitutional provisions, there might be instances where lawmakers, due to a lack of comprehensive constitutional literacy, inadvertently propose or pass laws that are inconsistent with the Constitution. This highlights the importance of rigorous constitutional review during the legislative process and continuous education for public officials.

2. Political Will and Expediency

In some cases, political expediency or a strong desire to achieve certain policy outcomes might lead to attempts to bypass constitutional constraints. A ruling party with a super-majority, for example, might be tempted to push through legislation that tests the boundaries of constitutional validity. This is where the vigilance of civil society, the opposition, and particularly the judiciary becomes paramount.

3. Delays in Judicial Review

Judicial review is not an automatic process. It requires an aggrieved party to approach the courts. If a potentially unconstitutional law is passed but no one challenges it in court, it might remain on the statute books, potentially causing harm, until it is eventually challenged or repealed. The speed of litigation can also be a factor, with cases sometimes taking years to reach a definitive resolution.

4. Enforcement of Court Judgments

While the judiciary can declare a law unconstitutional, the executive arm is responsible for enforcing such judgments. Instances of delayed or selective enforcement of court orders can undermine the effectiveness of judicial review and, by extension, constitutional supremacy.

5. Constitutional Crises

In extreme cases, a direct confrontation between the legislative and judicial arms over a matter of constitutional interpretation can lead to a constitutional crisis. While such events are rare in stable democracies, they underscore the fragility of constitutional governance and the need for all arms of government to respect the rule of law and the ultimate authority of the Constitution.

6. The “Ouster Clause” Phenomenon (Historically and Potentially)

While Section 4(8) of the 1999 Constitution explicitly prohibits laws that oust the jurisdiction of courts, there have been historical attempts, particularly during military regimes, to insert “ouster clauses” into decrees, purporting to prevent courts from reviewing certain governmental actions. The democratic dispensation has largely rejected such clauses, affirming judicial review as a cornerstone. However, constant vigilance is required to prevent any subtle attempts to limit judicial oversight.

Conclusion: An Unassailable Foundation

In conclusion, the answer to the question “Can the National Assembly make laws that contradict the Constitution?” is a resounding no. The Nigerian Constitution is the supreme law of the land, and any law enacted by the National Assembly that is inconsistent with its provisions is, to the extent of that inconsistency, null and void. This principle is not merely theoretical; it is actively upheld by a robust system of judicial review, where courts act as the final arbiters of constitutional validity.

The limitations on the National Assembly’s legislative powers are multifaceted, stemming from the express provisions of the Constitution regarding its supremacy, the separation of powers doctrine, the federal structure with its legislative lists, and the procedural requirements for law-making. While challenges and “blind spots” exist in practice, the foundational legal framework remains clear: the Constitution reigns supreme.

For Nigeria to continue its journey as a stable constitutional democracy, all arms of government, and indeed all citizens, must consistently respect and uphold the supremacy of the Constitution. The National Assembly’s vital role in law-making must always be exercised within the constitutional parameters, and any desired changes to the fundamental law must follow the rigorous and legitimate process of constitutional amendment. This unwavering commitment to constitutionalism is essential for the peace, order, and good governance of the Federal Republic of Nigeria.